| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : TANNENBAUM -v- EAST PERTH REDEVELOPMENT AUTHORITY & ORS [2005] WADC 258 CORAM : COMMISSIONER SCHOOMBEE HEARD : 21-30 JUNE 2005 DELIVERED : 22 DECEMBER 2005 FILE NO/S : CIV 77 of 2002 BETWEEN : DENNIS ALAN TANNENBAUM Plaintiff
AND
EAST PERTH REDEVELOPMENT AUTHORITY
First Defendant
LANDSPACE PTY LTD
Second Defendant/First Third Party
GAEBERN PTY LTD
Third Defendant/ First Named Second Third Party
BUX GROUP PTY LTD
Fourth Defendant/Second Named Second Third Party
Catchwords: Tort - Assessment of damages - Injury to cervical spine and spinal cord - Low back - Acceleration of degenerative changes - Loss of sexual function - Loss of
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earning capacity - Chance of early retirement - Likelihood of loss of earnings in secure position - Tax rate to be applied to establish net earnings - Relevance of accrual of sick leave
Legislation: Nil
Result: Judgment for the plaintiff Representation:
Counsel:
Plaintiff : Mr G Droppert
First Defendant : Mr M W Odes SC
Second Defendant/First Third Party : Mr P G McGowan
Fourth Defendant/
Second Named Second Third Party : Mr M L Greenland
Third Defendant/
First named Second Third Party : Mr M L Greenland
Solicitors:
Plaintiff : Donna Percy & Co
First Defendant : Talbot & Olivier
Second Defendant/First Third Party : Phillips Fox
Fourth Defendant/
Second Named Second Third Party : Greenland Brooksby
Third Defendant/
First named Second Third Party : Greenland Brooksby
Case(s) referred to in judgment(s):
Attorney General v Gabell [1968] SASR 44
Australian Iron and Steel Ltd v Greenwood (1962) 107 CLR 308
Bowen v Tutte (1990) Aust Torts Rep 81-043
Bresatz v Przibilia (1962) 108 CLR 541
Cullen v Trappell (1979-1980) 146 CLR 1
Dulieu v White & Sons [1901] 2 KB 669
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Graham v Baker (1961) 106 CLR 340
Hodgson v Trapp [1989] 1 AC 807
Jones v Griffith [1969] 2 All ER 1015
Lyndale Fashion Manufacturers v Rich [1973] 1 WLR 73
Malec v J C Hutton Pty Ltd
Medlin v State Government Insurance Commission (1994-1995) 182 CLR 1
Paff v Speed (1960-1961) 105 CLR 549
Purkess v Crittenden (1965) 114 CLR 164
State of NSW v Moss (2000) 54 NSWLR 536
Tacey v Bell (1985) Tas R (NN) 179
Villasevil v Pickering (2001) 24 WAR 167
Watts v Rake (1960) 108 CLR 158
Case(s) also cited:
Black v Motor Vehicle Insurance Trust (1986) WAR 32
Chappel v Hart (1998) 195 CLR 232
CSR Readymix (Australia) Pty Ltd v Payne (1997) Aust Torts Rep 81-432
CSR v Young (1998) 16 NSWCCR 56
DNM Mining Pty Ltd v Barwick [2004] NSWCA 137
Faulkner v Keffalinos [1971] 45 ALJR 80
Kember v Thackrah [2000] WASCA 198
Kschammer v R W Piper & Sons Pty Ltd & Ors [2003] WASCA 298
The National Insurance Co of New Zealand Ltd v Espagne (1960-1961) 105 CLR 569
Wright v Shire of Albany (1993) Aust Torts Rep 81-239
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1 COMMISSIONER SCHOOMBEE: Dr Dennis Tannenbaum, the plaintiff, is a psychiatrist, who was aged 53 at the time of the trial. Dr Tannenbaum enjoyed bike riding for fitness and recreation. On 3 January 1997 he undertook his regular early morning bike ride but was diverted from his usual route by road works. He therefore cycled through Mardelup Park in East Perth, Western Australia, and followed what appeared to him to be a dual use path. He was cycling at approximately 25kms per hour when the route of the path crossed an extension of a wooden jetty which had been constructed to extend into the park area. The wooden planks on the extension of the jetty had been laid in the same direction as the route of the path and over time small gaps had formed between the wooden planks. When the plaintiff crossed the wooden extension the front wheel of his bicycle jammed into a gap between the planks causing the plaintiff to be thrown head first over the handlebars and to land face down on paving stones in the vicinity of the path.
2 The East Perth Redevelopment Authority, the first defendant, was created for the purpose of undertaking, promoting and co-ordinating the redevelopment of the East Perth Redevelopment area, including the East Perth Gas Works site foreshore and public open space ("the site"), and was the owner and occupier of the land upon which the path crossing the jetty extension was constructed. 3 Landspace Pty Ltd, the second defendant, was engaged by the first defendant to provide landscaping services in respect of the site. Gaebern Pty Ltd (in liquidation), the third defendant, and Bux Pty Ltd (in liquidation), the fourth defendant, together trading as Natural Habitats Landscapes, were engaged by the first defendant to execute, complete and maintain the landscaping of the site. 4 The defendants all denied liability to the plaintiff in their respective defences and filed third party proceedings and cross-claims against each other. After some evidence relevant to the liability of the defendants had been led at the trial, the Court was informed that the defendants were consenting to judgement for the plaintiff and for damages to be assessed and had also agreed amongst themselves the proportion for which each defendant would be liable to the plaintiff. Accordingly, the Court was only required to assess damages.
The plaintiff's evidence 5 The plaintiff gave evidence that he was born on 3 August 1951. He was therefore 45 years of age at the time of the accident. The plaintiff said that he did not know whether he lost consciousness on hitting the
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paving stones, but at some stage he realised that he was lying face down with his head twisted towards the right. He tried to chase away a fly, but could not move his arms. His feet were still strapped into the pedal bars and his knees were elevated above the ground, although he had the sensation that his knees were on the ground. It took a while before a passer-by came along and unstrapped and carefully moved the plaintiff off his bicycle. The plaintiff was taken to hospital. The plaintiff said that he noticed on arrival at the hospital that it was 9.00am. He had left his home at about 6.30am. 6 The plaintiff gave evidence that as a result of the accident he sustained extensive lacerations to the left side of his face and his forehead, which required plastic surgery. He broke his nose and injured his left shoulder. He suffered severe pain, particularly in the neck and shoulders, although his whole body was in substantial pain. On arrival at the hospital he was initially unable to urinate and had to be supported in order to stand. He also experienced a weakness in his arms and had difficulty feeding himself on the first day. He developed strange sensations in various parts of his body such as a burning pain on the front of his forearm, pins and needles in the shoulders and underneath the feet and odd sensations in front of the left thigh. He spent one or two nights in hospital. 7 The plaintiff said that for the first few weeks after the accident he had difficulty sleeping, suffered from nightmares and was woken at night with his fingers having gone numb and in severe pain. The plaintiff gave evidence that it took many months, until later in the year, for the severe pain in the neck and shoulders to diminish. As those pains settled, he began to notice a general discomfort in the back with periods of slowly increasing lower back pain. The plaintiff said that he also suffered from gastric reflux, which probably commenced soon after the accident, but he did not notice it amongst the "constellation of pains". The gastric reflux manifested itself as an abdominal tearing pain, caused a sour taste from time to time and coughing after meals. 8 The plaintiff gave evidence that after approximately seven to eight months the agonising neck pain remitted to a persisting grinding pain which was manageable. He said that he then had a reasonably good period of a couple of years, but that recently his neck pain had increased again significantly together with a higher frequency of headaches. The headaches were low-grade headaches nearly every day with worse headaches about twice a week. The injury to his shoulders gave rise to a
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frozen shoulder on two occasions and each time required steroid treatment. 9 The plaintiff said that he still experiences odd sensations in his thigh and periodic pain in the left buttock. He is woken every night with paralysis of the arms and fingers. He also still experiences the burning pain on the front of his forearm, which only subsides with self-hypnosis. He has difficulty sleeping because of shoulder pain and because the numbness in his fingers and burning pain on the front of his forearm wake him up. The gastric reflux problem has persisted, but is managed with medication. 10 The plaintiff stated that he currently manages his symptoms by using Brufen, an anti-inflammatory medication, at increasing amounts over the last five years, as well as Aspirin, Paracetamol and Panadene tablets for pain. He also takes a gastric reflux medication, Losec. He regularly exercises at the gym and does Pilates in order to maintain his body function and flexibility. 11 The plaintiff further gave evidence that his sexual function has been impaired since the accident. He said that very soon after the accident he noticed a complete cessation of morning erections, which he then thought was due to the pain. As he recovered from the accident he noticed that he also had no spontaneous erections, although he was able to have satisfactory sexual intercourse for a number of years. Approximately four to five years prior to the trial the plaintiff experienced quite rapidly increasing difficulties of obtaining an erection. He used Viagra and similar medication, which had the necessary effect for a couple of years. However, the medication then stopped working and the higher doses which he tried made him increasingly ill. The plaintiff said that he had therefore ceased all sexual function approximately three years prior to the trial. 12 The plaintiff stated that his libido is currently unaffected, but he is unable to obtain an erection. He gave evidence that he has tried to reconcile himself to this position over the last three years, but cannot quite accept his position and is considering a penile implant. The plaintiff said that he has not finally made up his mind whether he intends to proceed with a penile implant, but will continue to discuss this with his specialist, Dr Cherry. At present there is a 50 per cent chance that he will proceed with a penile implant. The plaintiff said that he is not prepared to try penile injections, as his experience in administering these injections to
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patients has not been positive. In his view the injections are only a short-term solution, very painful and cause scarring. 13 It was put to the plaintiff in cross-examination that he had not reported to his treating specialist, Dr Silbert, a neurologist, at any of his visits in February and June 1997 and in March 1998 that he had experienced lower back pain since the accident. It was only in a report by Dr Silbert of 26 January 1999, which related to a visit on 3 December 1998, that Dr Silbert first reported on the plaintiff's lower back pain. The report stated that "since the cycling accident, Dr Tannenbaum has noted low back pain". The plaintiff admitted that he had not reported his lower back pain for a period of approximately two years after the accident, but stated that he had not considered it significant enough amongst all the other pain and difficulties that he had experienced. The plaintiff said that the lower back pain had always been cyclical and that it was not until he had a period of more acute pain that he told Dr Silbert and went to see an orthopaedic surgeon, Mr Woodland. 14 The plaintiff first saw Mr Woodland on 10 November 1999, almost three years after the accident. It was only after the plaintiff saw Mr Woodland, that x-rays and an MRI scan were taken of his lower back. The plaintiff explained that his back pain was at a much lower level than the other pain experienced and he was not concerned enough to do anything about it until November 1999. 15 It was also put to the plaintiff in cross-examination that his general practitioner, Dr Greenham had noted in a report, dated 9 October 2001, that when he had examined the plaintiff on 6 January 1997, the plaintiff had experienced pain in his cervical spine and in the shoulders, "but not on his back". The plaintiff denied strongly in cross-examination that he told Dr Greenham that he did not have pain in his back. When Dr Greenham was called by the plaintiff as a witness, Dr Greenham explained that the notation in the report "but not on his back" was his mistake which had occurred when he transcribed his notes made on a body chart relating to the plaintiff. Dr Greenham had indicated on the body chart that there were numerous abrasions on the front of the hands, and had written next to it the notation "front of hands (not back)". He explained in evidence that he had mistakenly transcribed this notation as no pain being experienced in the back, because immediately underneath this notation he had also written "(pain)". 16 It was further put to the plaintiff in cross-examination that his sexual dysfunction was caused by age and the increasing back pain and was not
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related to the accident. The plaintiff replied that he had experienced normal sexual functioning prior to the accident. He admitted that pain can interfere with a satisfactory sexual relationship, but said that in his case he was still unable to have an erection even if he had a period of no back pain. 17 The plaintiff gave evidence that he had never done a great deal of work in the household, but had performed small handyman tasks such as changing light bulbs, putting up pictures and cleaning gutters. The plaintiff said that he is no longer able to do any activity that requires him to keep his hands above his head for a period of time. He can quickly change a light bulb, but not remove a light fitting if this takes some time to do. He has also found that his fingers have become clumsier and that his balance is not as good as before the accident. He can no longer play tennis and is unable to swim in freestyle because of the restriction on his shoulder rotation. He used to snorkel regularly but can no longer do so. 18 The plaintiff stated that he had started to do some cycling again, although he cycled a lesser distance than before the accident and only in summer and on weekends. He made use of a dual suspension bike rather than his racing bike as he found any vibration irritating. Since his accident he had also found the noise made by the fan of his Toshiba laptop computer irritating, he could not sit with his head bent in a forward flexed position to type on it and he had trouble using the keyboard because of the clumsiness of his fingers. As a result he had purchased a desktop computer with monitor for $4,906.
Dr Greenham 19 Dr Greenham, a general practitioner, gave evidence that the plaintiff attended his rooms on 6 and 9 January 1997 and was prescribed medication. He said that he did not refer the plaintiff to a specialist as the plaintiff, being a psychiatrist, was legally able to refer himself to a specialist. He said that he did not do a detailed medical examination, as the plaintiff had recently left hospital and he did not regard himself as the prime manager of the plaintiff's medical condition. He agreed under cross-examination that if the plaintiff had told him about pain in his lower back or about sexual dysfunction, he would have made a note of this. His notes did not reflect this. 20 Dr Greenham described the plaintiff's swelling and bruising of his face, arms, neck and legs as "terrible" and said that he had never before seen such a degree of swelling in an injury of that nature.
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Dr Silbert
21 Dr Silbert is a neurologist who practices in private practice as well as at Royal Perth Hospital. He gave evidence that he had undertaken post-graduate studies at the Mayo Clinic in the United States. The plaintiff first came to see him on 21 February 1997 about his neck. Dr Silbert diagnosed a significant cervical spinal cord injury related to a hyperextension injury of the cervical spine. A cervical and cranial MRI scan obtained by Dr Silbert in February 1997 indicated that there was significant central spinal canal narrowing and impingement of the spinal cord at C3/4 level. It also showed a focal signal change within the cervical cord which indicated either swelling or fluid retention in the spinal cord. 22 Dr Silbert said that the plaintiff genetically had a narrow spinal canal. Further narrowing of the spinal canal was caused by a disc bulge as well as osteophytic ridging. Dr Silbert expressed the opinion that the disc bulge was significant and that this was likely to have occurred at the time of the accident. He conceded under cross-examination that the disc bulge may have been pre-existing, but stated that he thought it unlikely, as the plaintiff had been asymptomatic in the neck prior to the accident. Dr Silbert also said that the mechanism, by which the accident occurred, namely the plaintiff landing on his forehead without any bracing with his arms and the hyperextension of his spine, indicated that the disc bulge was likely to have occurred as a result of the accident. Dr Silbert agreed that the osteophytic ridging may have been pre-existing. 23 Dr Silbert explained that an objective measure of the spinal cord injury were the symptoms that the plaintiff experienced, such as the burning sensation on his arm and the Lhermitte’s phenomena. This phenomena manifested itself in the plaintiff feeling a tingling electrical feeling down his back and in his feet when he bent his neck forward or extended it backwards, for example while riding his racing bike. This tingling feeling was caused by an inflamed or bruised spinal cord. Dr Silbert rejected the opinion expressed by Dr Carroll that the numbness felt by the plaintiff at night time in his hands at C6/7 distribution (index and middle finger) and C8 (little finger) resulted from a compression of the brachial plexus. He said that C6/7 and C8 were outside the distribution of the brachial plexus and that this numbness was much more likely to be caused by the spinal cord injury. 24 Dr Silbert stated that the severity of the cervical spinal cord injury was reflected in the plaintiff's experience of quadriparesis which was
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present for at least 15 minutes immediately after the accident. There was also objective evidence of scarring to the spinal cord which could be seen on a repeat cervical MRI scan taken on 3 September 1997. The repeat scan showed that the swelling in the spinal cord had receded, but that there was a white spot indicating an area of scarring. The plaintiff's neurological symptoms, such as the burning pain felt on the left forearm, the weakness of his upper extremities and a change in sexual function were indicative of and caused by damage to the spinal cord. In Dr Silbert's view the neurological injury to the cervical spine reflected a 20 per cent disability of cervical spine function. 25 Dr Silbert stated that somatosensory evoked potentials had been performed on the plaintiff on at least two occasions. He explained that these tests followed electrical impulses as they passed up the legs and the spinal cord to the surface of the brain. However, these test only monitored the pathways through a small part of the spinal cord at the back. The tests did not reflect what was happening in the remainder of the spinal cord. Accordingly, while the tests were another objective measure of determining change in the spinal cord, they were not helpful in indicating conclusively what damage had occurred to the spinal cord. 26 Dr Silbert also gave evidence that the MRI scans obtained indicated that the plaintiff had had pre-existing degenerative changes at the C3/4 level, particularly to the facet joints on the outside of the spinal cord. The natural progression of these degenerative changes was likely to have been accelerated and made worse by the accident. Dr Silbert described the acceleration of the degenerative changes at C3/4 as the "mechanical aspects" of the injury and said that these accounted for the plaintiff's upper cervical discomfort and headaches. The bulging of the disc had put more load on the facet joints which in turn had caused acceleration of the degenerative changes at C3/4 level. Dr Silbert was of the view that the mechanical problems had caused a further 20 per cent disability of cervical spine function. 27 Dr Silbert expressed the opinion that further degenerative changes caused by age and the accelerated degeneration at the C3/4 level would expose the plaintiff to further narrowing of the spinal cord canal and further injury to the spinal cord. In his report of 26 January 1999 Dr Silbert expressed the opinion that it was likely that the plaintiff would require spinal cord decompression as well as a fusion in the next 10-20 years. Dr Silbert said that the plaintiff did not require surgery immediately and that his condition would have to be carefully monitored in order to establish the most opportune time for the performance of the
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surgery. He explained that the surgery would not improve the plaintiff's condition, but would stop further deterioration at that time. 28 Dr Silbert said that there were some risks involved in the surgery and once a fusion at level C3/4 had occurred, this would put further pressure on and accelerate degenerative changes in the segments above and below that level, potentially requiring a fusion at those levels in the future. If the plaintiff's spinal cord was further compromised, his current symptoms, such as sensory change in the forearm, weakness in the limbs, and sexual dysfunction might increase. In order to determine when to carry out the surgery, the plaintiff's symptoms would have to be carefully monitored and MRI scans should be taken every two years to monitor any changes in signal on the scan. The repeat MRI scans taken in 2004 had already indicated some progression in the signal in the spinal cord. The mechanical aspects of the plaintiff's injury might also increase and interfere with the plaintiff's daily activities to such an extent that surgery was called for. 29 Dr Silbert expressed the view that the plaintiff was able to work full time as a psychiatrist at present. He further said that the plaintiff might still be able to work full time after surgery, if the surgery was mainly aimed at arresting the neurological deterioration. However, if the surgery was undertaken for mechanical reasons, because the plaintiff was having significant neck pain and headaches, there was "no guarantee" that the plaintiff would be able to continue working full time. 30 Dr Silbert also said that interference with sexual function was often an early clinical sign of spinal cord injury. However, he acknowledged that there could be other factors which contributed to a compromise of sexual functioning and that he would defer to Dr Cherry in respect of the assessment of the contribution of other factors. He explained that the fact that he had recorded "normal sexual function" in his report of 27 February 1997 did not mean that he had explored with the plaintiff what he understood by "normal sexual function". He would have asked the plaintiff a comprehensive question regarding what his bladder, bowel and sexual functions were. 31 Dr Silbert agreed that he had not made any notation of the plaintiff telling him that he had experienced back pain after the accident until his report of 26 January 1999 which referred to a review of the plaintiff on 3 December 1998. He expressed the view that his consultations and examinations had focussed on the plaintiff's neck.
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Dr Vaughan
32 Dr Vaughan, a neurosurgeon, was called to give evidence on behalf of the plaintiff. He said that he had been a neurosurgeon since 1969 and had considerable experience as a spinal surgeon. He had been head of the Sir George Bedbrook Spinal Unit at Shenton Park as well as head of the Inner Hospitals Neurosurgical Services of Western Australia. 33 Dr Vaughan first saw the plaintiff on 6 March 1997 and reviewed him on 22 March 2004. In his medico-legal report of 5 April 2004, Dr Vaughan stated that in his view the plaintiff would require decompression and fusion surgery in the future. The surgery would be undertaken when there were signs of a worsening neurological state, indicated by weakness, clumsiness or diminished sensation in the arms or legs. Dr Vaughan said that the concern was that a worsening neurological state could lead to the loss of function of an arm or a leg. The aim of decompression surgery was to stop further deterioration and hopefully to restore the position to where it was sometime before. However, the damage to the spinal cord itself could not be reversed. 34 Dr Vaughan gave evidence that the operation would require the plaintiff to be in hospital for five to seven days and another three weeks at home during the acute phase. The plaintiff would require a further three weeks for the more chronic phase and then would be able to go back to work part time. He should be able to return to work full time within 6-12 weeks of the operation. Dr Vaughan expressed the opinion that the operation involved a small percentage of risk of death or quadriplegia. He also said that he would be likely to perform the surgery from the front of the neck which would mean that the plaintiff would have an uncomfortable period involving problems with swallowing, possible voice changes and the need to wear a collar. 35 Dr Vaughan recommended post surgery physiotherapy twice a week while in hospital and thereafter weekly for at least the first six weeks and possibly another six weeks thereafter. 36 Dr Vaughan noted worsening symptomatology in his report of 5 April 2004 and listed headaches, arm paraesthesia, clumsiness of the fingers with fine tasks, burning sensations in the left arm and sexual dysfunction. Dr Vaughan noted that vibrationary activities worsened the symptomatology and expressed the opinion that the symptoms were due to a likely worsening of the state of the spinal cord. He stated in his report of 5 April 2004 that it was now more likely that surgery would be required than when he first saw the plaintiff.
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37 Dr Vaughan gave evidence that according to the handwritten notes that he had taken, the plaintiff had already complained to him of being "uncomfortable in the back" in March 1997. Dr Vaughan expressed the view that the plaintiff’s pre-existing degenerative changes at C3/4 level could potentially have caused myelopathy of the spinal cord irrespective of the accident, but not within the time span in which this had occurred.
38 Dr Vaughan expressed the view that spinal surgery was a highly specialised area in which only a select few surgeons and neurologists were practising. He said that he would not seek the opinion of an orthopaedic surgeon who was not an experienced spinal surgeon in relation to an operation of the spine. He said that Mr Kagi, a surgeon who had provided a report on behalf of the second defendant, was a good orthopaedic surgeon, but, to his knowledge, had not been involved in spinal surgery, except perhaps peripherally.
Mr Woodland 39 Mr Woodland, an orthopaedic spinal surgeon, gave evidence on behalf of the plaintiff. He said that since 1993 he had been working full time in private practice and at Royal Perth Hospital as a spinal surgeon dealing with all aspects of spinal surgery, including spinal injuries. He first saw the plaintiff on 10 November 1999 and reviewed him with lumbar spine x-rays and MRI scan results on 24 November 1999. 40 Mr Woodland said that the MRI scan had shown advanced disc degenerative change at the L5/S1 level as well as a disc protrusion at that level which had become calcified and had come in contact with the left S1 nerve root. Mr Woodland gave evidence that it was likely that a man of 46 years at the time of the accident would have had some wear and tear changes in his lower back and that the x-rays and MRI scans indicated that the plaintiff did have pre-existing degenerative changes in his lower back. It was difficult to say whether the disc protrusion had been pre-existing or had occurred as a result of the mechanism of the injury whereby the plaintiff was thrown head first over the handlebars with his feet still encased in the pedal clips. 41 Mr Woodland was of the opinion that the mechanism of the injury indicated that the plaintiff had received a hyperextension injury at C3/4 as well as at L5/S1 and that this rendered the existing degenerative changes symptomatic. Mr Woodland said that he would have expected the plaintiff to have had acute back pain within days, or at least weeks after the accident as a result of the mechanism of the injury and if the plaintiff's back pain had only manifested itself two years later, he would find it hard
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to see a causal relationship between the accident and the back pain. However, Mr Woodland said that the plaintiff had told him that his back had been asymptomatic prior to the accident and that he had developed back pain within the first few weeks after the accident. Mr Woodland said that he had specifically asked the plaintiff when the pain had come on. 42 Mr Woodland was asked in cross-examination whether his statement in his report of 4 April 2000 that the plaintiff had reported to him "within a couple of weeks of the accident …. increasingly severe lumbar back pain" meant that the plaintiff had said that his back pain had been severe within weeks of the accident. Mr Woodland consulted his notes taken during the consultation on 10 November 1997 which indicated that the plaintiff had told him that he had experienced low back pain within weeks of the accident and that the back pain had increased recently. Mr Woodland thought it understandable that the plaintiff may have initially overlooked his lower back problems in the context of his more serious injuries. 43 Mr Woodland expressed the opinion that he was less concerned about the plaintiff’s lower back than his neck, as the lower back pain was mainly a quality of life issue. Mr Woodland said that it was possible that the plaintiff would come under consideration for surgery to his lower back, which would involve a fusion at L5/S1 level combined with decompressive laminectomy surgery. He agreed under cross-examination that there was currently no indication that this surgery was required and that it involved a subjective decision, depending on how much the plaintiff was troubled by back pain. If surgery for the lower back was undertaken the accepted estimate for improvement in back pain was 70 per cent. Mr Woodland agreed that surgery to the lower back might then prolong the plaintiff's working life. If surgery to the lower back were undertaken, the plaintiff would be unable to work for at least two or three months and would then be returning to work on a graduated basis over the next two to three months. 44 Mr Woodland said that the plaintiff had the capacity to work before his retirement age and that it was very difficult to estimate by how much his working life had been reduced. In his view the plaintiff had a 50 per cent chance of not being able to work to his expected retirement age of 65. He also stated in one of his reports that he estimated that the plaintiff's retirement age would be brought forward by five years. It appears that this assessment was based not only on the potential worsening of lumbar back symptoms, but also on the deterioration of the
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plaintiff’s neurological and mechanical symptoms resulting from the cervical spine injury. 45 Mr Woodland gave evidence that he considered the plaintiff's cervical spine injury to be serious and that he was concerned that the plaintiff’s spinal cord function would deteriorate in the future. It was difficult to say if and when this would occur, but it was common for patients with spinal cord injuries to loose further function of their spinal cord as they became older. A trivial injury, for example a fall, could cause the deterioration to set in. The signal changes indicated on the MRI scans showed that there was damage to the spinal cord. It was a positive sign that those signal changes had not deteriorated much over the period of eight years since the accident, but Mr Woodland said that he was still concerned that in 5 to 15 years' time there would be further deterioration. In Mr Woodland’s opinion the likelihood of the plaintiff requiring cervical spinal surgery was 50 per cent. He estimated that the plaintiff's retirement age would be brought forward by five years, but considered that the plaintiff would still be able to work for the next five years. 46 Mr Woodland expressed the view that the degenerative changes which were already present in the plaintiff's neck and lumbar spine would have progressed irrespective of the accident and it would not have been surprising if the plaintiff's neck and lower back had become symptomatic later in life irrespective of the accident. The plaintiff's narrow spinal canal in itself would not necessarily have caused spinal pain, but the existing degenerative changes may have done so. 47 Mr Woodland said that the plaintiff's sexual dysfunction might be related to the injury to the spinal cord, but he would defer to Dr Cherry, who was a recognised expert in the field of male sexual problems, in this regard. 48 Mr Woodland was also asked about Drs Kagi and Carroll. He said that whereas he respected their opinions, neither of them was a practising spinal injuries surgeon, whereas he had daily and ongoing experience of spinal injury patients.
Dr Cherry 49 Dr Cherry, a medical practitioner from the Perth Human Sexuality Centre, gave evidence on behalf of the plaintiff. Dr Cherry said that he had established the Perth Human Sexuality Centre in the early 1990's and became its medical director. He also works at Royal Perth Rehabilitation
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Hospital in the spinal cord unit where he treats spinal cord injured males and females in respect of their sexual dysfunction. 50 Dr Cherry first saw the plaintiff in October 2001. He noted in a report dated 7 January 2002 that the plaintiff had reported to him that immediately after the accident his sexual function had appeared to be normal, but then gradually deteriorated over a number of months. He said that the plaintiff had told him that prior to the accident his sexual function was entirely normal, while in October 2001 he was no longer aware of any early morning erections and was unable to obtain an erection which was strong enough to maintain sexual intercourse. However, he was then able to achieve good results with a low dose of Viagra. 51 Dr Cherry said that he obtained a full history from the plaintiff and carried out a clinical assessment and biochemical testing. The test results excluded any vascular, hormonal or biochemical reasons for the plaintiff's erectile dysfunction. Dr Cherry stated in his report of 7 January 2002 that the injuries to the cervical spinal cord received by the plaintiff indicated a cervical neurogenic cause of his sexual dysfunction and the marked improvement of his function with a low dose of Viagra confirmed this diagnosis. 52 When Dr Cherry reviewed the plaintiff in March 2004 the plaintiff reported to him that a low dose of Viagra was no longer effective and that higher doses of Viagra as well as similar medication produced substantial side effects and were no longer adequate for sexual intercourse. Dr Cherry at that time recommended intracavernosal injections as a treatment option, but reported that the plaintiff was not enamoured with that option. At that time Dr Cherry did not recommend a penile implant, as the plaintiff's erectile tissue was still very healthy. Dr Cherry's view was that the plaintiff's prognosis was poor in light of the fact that there had been no improvement since the accident, only deterioration of his sexual functions. 53 In giving evidence Dr Cherry said that during a recent consultation with the plaintiff which took place after June 2004, the plaintiff had come to the conclusion that he might wish to proceed with a penile implant in the future, as this appeared to be the only acceptable option available to the plaintiff of recovering his sexual function. Dr Cherry explained that his initial reluctance in recommending a penile implant was based on the fact that it was an irreversible procedure in that the healthy penile tissue would gradually be destroyed after artificial cylinders had been inserted as part of the penile implant. This meant that even if the plaintiff's
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neurological input could be improved at a future stage or new medication became available, the plaintiff would then have lost the normal function of his penile tissue. A successful penile implant had a 90 per cent chance of allowing successful sexual intercourse, although the operation in itself carried the usual risks of any surgery as well as the risk of technical faults that could require further surgery. Dr Cherry gave evidence that intracavernosal injections would be an option and that they were relatively pain free, but that they did not allow for any spontaneity in sexual relations and that the plaintiff and his wife had rejected them on this account. Dr Cherry further said that intracavernosal injections did present a one per cent risk of the development of Peronie's disease which could result in serious disfigurement and scarring of the penis. In addition there was a 10 per cent risk of scarring of the penis. 54 Dr Cherry was asked to comment on Dr Carroll's report which was to the effect that the plaintiff’s erectile dysfunction was unrelated to the accident. Dr Cherry explained that there was currently no diagnostic tool which could clearly define the difference between psychogenic and neurogenic causes. Dr Cherry's opinion that the plaintiff's erectile dysfunction was caused by the accident was based on the history provided by the plaintiff indicating a trauma on the spinal cord, the results of the MRI scans which indicated scarring of the spinal cord at C3/4 level, the elimination of other causes by the biochemical testing carried out and the fact that the plaintiff had reported no psychological problems, a healthy sexual relationship prior to the accident and ongoing libido. Dr Cherry further said that his opinion was based on his experience of treating patients with neurological problems and sexual dysfunction as the major component of his work. He said that he had noticed a repeated pattern of erectile dysfunction in males who had suffered minor to moderate neurological injury and where there were no other causes indicated for the erectile dysfunction. Further, the scarring of the spinal cord visible on the MRI scans was at a location where the fibres that control erectile function run. Dr Cherry explained that where erectile dysfunction was caused by neurogenic factors, the erectile tissue itself was likely to gradually atrophy over a period of 3 to 10 years. The fact that the plaintiff's erectile dysfunction progressively got worse in that medication no longer achieved the requisite result, also indicated a neurological cause. It meant that less neural impulses were coming down from the spinal cord, or that the erectile tissue itself was deteriorating. 55 Dr Cherry said that he had the highest regard for the work of Dr Carroll as a clinician, but that he considered himself to have more
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expertise in the domain of sexual dysfunction. Dr Cherry acknowledged that he was not a trained neurologist. 56 Dr Cherry was cross-examined on whether the plaintiff's decline in sexual function could be a result of a normal aging process or the plaintiff's lower back pain interfering with his sexual function. Dr Cherry gave evidence that the natural decline in sexual function of older, but otherwise healthy, males tended to onset a decade later than in the plaintiff's case and that it occurred very slowly over a number of years and not months as in the plaintiff's case. Further, a natural decline first manifested itself as a loss of libido followed over time by retarded ejaculation and/or erectile dysfunction. In the case of the plaintiff his libido had remained intact. Further, the plaintiff had reported to him that his sexual function was entirely normal prior to the accident. Dr Cherry said that the robustness of the plaintiff's sexual function was also indicated by the fact that for a short time after the accident it appeared normal, but then deteriorated over a few months as the impact of the injury took effect. 57 Dr Cherry agreed that lower back pain inhibited sexual performance and that this in turn could generate a negative psyche which could lead to erectile dysfunction. However, Dr Cherry said that he did not believe that this applied to the plaintiff, because the plaintiff had not given him a history of back pain interfering with his sexual function and by reason of the other factors which indicated a neurogenic cause. 58 He stated that he would leave the decision on whether to proceed with a penile implant to the plaintiff and would refer him to one of two urologists who specialise in this area, if required. Dr Cherry said in his report of 20 June 2005 that the plaintiff was currently still on Viagra in order to maintain the viability of his penile erectile tissue. If there was a late recovery of neurological function the erectile tissue would still be able to respond.
Dr Abrugiato 59 Two reports by Dr Abrugiato, a gastroenterologist, were tendered by consent. Dr Abrugiato initially saw the plaintiff on 30 January 1998. He diagnosed him with gastro-oesophageal reflux which was precipitated by his hospitalisation after the accident, the general anaesthetic whilst in hospital for treatment of his injuries, and weight gain following upon the accident. The reflux was complicated by a mild erosive esophagitis. Dr Abrugiato prescribed Losec 20-milligram daily on a long-term basis.
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60 Dr Abrugiato again saw the plaintiff on 9 March 1999 when he was responding well to the medication. The plaintiff presented for another consultation on 27 April 2004, when his gastro-oesophageal reflux had deteriorated slightly over the last 6 months resulting in occasional break-through symptoms. Dr Abrugiato was of the opinion that the plaintiff should continue taking Losec 20mg daily on a long-term basis and an additional 20mg intermittently as required. In Dr Abrugiato's view the plaintiff's prognosis was good as symptomatic control had been achieved and could be maintained with medication.
Mr Hamilton 61 Two reports by Mr Hamilton, plastic and reconstructive surgeon, were tendered by consent. Mr Hamilton reported that he had seen the plaintiff on 15 January 1999 and diagnosed a fracture of the septum, resulting in a deformation of the plaintiff's nose. This had also caused a functional problem with breathing and occasional bleeding of the right side of the nose. 62 Mr Hamilton recommended a total rhinoseptoplasty to correct the deformity. He stated that such a procedure would require the plaintiff to take 2½ to three weeks off work and that the nasal swelling would take approximately six weeks to settle.
Mr Holt 63 A report by Mr Holt, orthopaedic surgeon, was tendered by consent. Mr Holt stated in his report that he first saw the plaintiff on 20 November 1997 when he had a frozen shoulder and ongoing pain in the shoulder. Mr Holt injected the left shoulder at that time and noted at the second consultation in February 1998 that the plaintiff had gained substantial improvement in his shoulder. 64 Mr Holt had last reviewed the plaintiff on 21 December 1999 when the plaintiff still experienced some ongoing ache in the left shoulder. Dr Holt reinjected the shoulder on this occasion and stated in his report that the plaintiff had notified him by letter on 15 January 1999 that his shoulder had improved by 99 per cent. On this basis Dr Holt was of the view that the plaintiff would not have a residual disability in his shoulder.
Mr Kagi 65 Mr Kagi was called to give evidence on behalf of the second defendant. Mr Kagi is an orthopaedic surgeon who has been a fellow of the Royal Australian College of Surgeons since 1976. Mr Kagi gave
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evidence that his particular interest was in peripheral nerve surgery which dealt with injuries to the nerves outside the spinal cord and brain. In that context he was also interested in the overlap between peripheral nerve and central nerve and had attended the spine meetings at Shenton Park Rehabilitation Centre on Saturday mornings. He did not regard himself as an expert in spinal injuries, but thought that he was more familiar with such injuries than the average orthopaedic surgeon. 66 Mr Kagi first saw the plaintiff for a medico-legal report in August 2004. He saw the plaintiff on two occasions in order to prepare his report of 17 August 2004. At that time the plaintiff had told him that he had seen Mr Woodland with regard to low back pain and numbness which the plaintiff experienced in both feet after cycling 8-10kms. Mr Kagi said in evidence that he had assumed from the history provided by the plaintiff that the plaintiff's lower back pain had developed sometime after the cycling accident and not as late as two years thereafter. On that basis he had concluded in his report that the plaintiff's injury to the lumbar spine had been caused partly by the accident and partly by the pre-existing degenerative changes evident from the x-rays taken. Mr Kagi said that if the plaintiff had only developed lower back pain two years after the accident, he was of the view that this was unrelated to the accident and only caused by the degenerative changes. He would have expected the plaintiff to have experienced pain in his back soon after the accident, if this was caused by the accident. 67 Mr Kagi was of the opinion that the plaintiff's condition of the lower spine was unlikely to change significantly over the next 10 to 20 years and that the plaintiff would be able to carry on his work as a psychiatrist until normal retirement age. In Mr Kagi's opinion the plaintiff did not require any surgical intervention for the lumbar spine. He based this opinion largely on the fact that the plaintiff had been able to work up to 2004, that is for approximately seven years after the accident. 68 Mr Kagi also expressed a view with regard to the plaintiff's cervical spine injury. In his opinion the scarring of the spinal cord was unlikely to progress and there was therefore a less than 10 per cent chance of the plaintiff requiring cervical spine surgery in the future. He said in a further report, dated 10 June 2005, that any contemplated surgery to the cervical spine would presumably be for neck pain and if surgery was carried out for the mechanical injury, it should improve the symptoms and enable the plaintiff to work until retirement age. However, there was no guarantee that this type of surgery would improve the plaintiff's condition. There
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was a 30 per cent chance that the surgery would make no difference and a 10 per cent chance that the surgery would make the symptoms worse. 69 He acknowledged that Dr Silbert, Mr Woodland and Mr Vaughan had greater expertise in the assessment of spinal cord injuries than he had and that Dr Silbert had seen the plaintiff over a period of eight years. However, Mr Kagi said that he would want to see diminished function demonstrated on somatosensory evoked potentials and progressive changes on the MRI scans before agreeing that cervical spine surgery was required. In his view the scarring indicated on the MRI scans had remained unchanged since the accident. 70 In Mr Kagi's opinion the plaintiff would have developed low back symptoms irrespective of the accident because of the degenerative changes demonstrated by the x-rays and the MRI scans. The fact that a comparison of the MRI scans taken in 1997 and 2004 showed very little change in the profile of degenerative changes, did not mean that the plaintiff would not have developed lower back pain within that period. Degenerative changes such as those shown on the plaintiff's MRI scans could be totally asymptomatic or become symptomatic for no particular reason. 71 Mr Kagi was of the opinion that any sexual dysfunction that the plaintiff experienced was not the result of degenerative changes in the lower back.
Dr Carroll 72 Dr Carroll is a neurologist who gave evidence on behalf of the second defendant. Dr Carroll first saw the plaintiff for a medico-legal report in September 2004. 73 In Dr Carroll's opinion the plaintiff's condition of the cervical spine was caused by a combination of degenerative disease of the cervical spine exacerbated by the disc protrusion and hyperextension injury. He agreed in cross-examination that the forces exerted upon the plaintiff's neck in the accident were sufficient to render symptomatic a previously asymptomatic degeneration in the cervical spine. In his view it was uncertain whether the disc protrusion occurred during the accident, was made worse during the accident or was totally pre-existing. 74 In Dr Carroll's opinion the only symptom likely to have resulted from a decompression injury of the cervical spine was the burning sensation felt on the plaintiff's left forearm. The intermittency of the other
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symptoms reported by the plaintiff indicated that they did not emanate from the abnormalities of the spinal cord shown on the MRI scans. In Dr Carroll's view, the numbness felt in the hands by the plaintiff at night time was more likely to result from intermittent non-injurious compression of the lower trunk of the brachial plexus at the thoracic outlet than from the spinal cord. In his opinion there was no progression of neurological symptoms and no change in signal indicated on the MRI scans taken in September 1997 and October 2000. Dr Carroll admitted that he had not seen the film of the MRI scan taken in February 1997 and had seen only one sheet of the MRI scan taken in September 1997. Dr Carroll said that if the plaintiff's MRI scans and somatosensory evoked potentials remained unchanged, the plaintiff might be able to avoid future surgery to the cervical spine. 75 In Dr Carroll's view, the plaintiff had only minor neurological sequelae from his accident of less than five per cent and his future prognosis was good. However, Dr Carroll agreed in cross-examination that he had not taken into account the effect of the plaintiff's mechanical injury in the cervical spine. In Dr Carroll's opinion, the plaintiff's fitness to work as a psychiatrist was unimpaired. 76 In relation to the plaintiff's lower back symptoms, Dr Carroll thought that they were more likely to be related to degenerative changes than to the accident. The lumbar spine images indicated that the plaintiff had a congenitally narrow canal. 77 In his view the plaintiff's erectile dysfunction was not likely to have been caused by the injury at C3/4 level. Dr Carroll said that if the spinal cord fibres controlling erectile function had been damaged, it would be likely that the fibres controlling bladder function would also be damaged, as they were fibres of the same size, originating from the same place and situated fractions of a millimetre apart in the spinal cord. He agreed that a spinal cord injury could affect erectile dysfunction and that it was a matter of a difference of opinion as between himself and Dr Cherry as to whether the plaintiff’s erectile function had been caused by the spinal cord injury.
Evidence in respect of loss of earning capacity 78 The plaintiff gave evidence that prior to the accident he had conducted a practice as a consultant psychiatrist from about 1984 onwards. At the time of the accident the practice was operated by way of a company, Dennis Tannenbaum Pty Ltd. The plaintiff saw patients from 8am to 6pm after which he visited further patients in hospital. He was on call approximately one in four to six weekends and one or two nights a
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week. In addition he ran one or two evening teaching sessions for general practitioners, was on a number of federal professional committees as well as the president of and a national board member of the Private Hospitals Association. In respect of these activities he was engaged two to three evenings per week and travelled to the Eastern States approximately one to two times per month. 79 The plaintiff said that in about 1986 he and some of his colleagues had established the Mounts Bay Clinic and he became the managing director and subsequently the Chief Executive Officer of this clinic. At the same time he conducted his private practice as a psychiatrist from the Mounts Bay Clinic. He spent about half a day to a day on administration in his duties as Chief Executive Officer and the remainder of his time as a psychiatrist. 80 The plaintiff gave evidence that in about 1995 he and some of his colleagues had founded the Perth Clinic, a psychiatric hospital. The plaintiff was the Chief Executive Officer of the Perth Clinic from about 1995 until 2000 and worked half of his time in that capacity and half in his private practice. The plaintiff said that he still holds shares in the Perth Clinic and that his family trust, the Dennis Tannenbaum Family Trust, receives income from the Perth Clinic. The plaintiff stated that currently he no longer performs any work for the Perth Clinic and that the income that the trust derives from the Perth Clinic is exclusively a dividend payable in respect of his shareholding. 81 In 2000, after the accident, the plaintiff started a third business enterprise, the development of an internet system, called Recovery Road, which allowed communication between clinics, hospitals, doctors and patients regarding the patient's treatment and progress. This business enterprise was conducted by way of a company originally called Infrapsych Pty Ltd, then Sentiens Global Pty Ltd and finally Sentiens Pty Ltd ("Sentiens"). The plaintiff had conceptualised and designed the entire system. He was also appointed as the executive chairman and Chief Executive Officer of Sentiens. The plaintiff gave evidence that his appointment as Chief Executive Officer was intended to be on a temporary basis until the company was able to operate without his day-to-day assistance. The plaintiff said that his current intention was that he would step back and remain only as executive chairman as his difficulties with working full time increased. The plaintiff said that prior to the accident when Sentiens had not yet been conceptualised, he intended to work full time as a psychiatrist until age 65 and then part-time for a further five years.
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82 In about August 2004, the plaintiff sold his private practice to Sentiens and was thereafter employed by Sentiens as executive chairman and Chief Executive Officer for a salary of $300,000, inclusive of superannuation. The plaintiff explained that he was still working part time as a psychiatrist, but that the income from these services had been allocated to Sentiens since August 2004. Accordingly, the salary of $300,000 paid to the plaintiff was in consideration for his contribution to patient income, plus his services as executive chairman and Chief Executive Officer.
83 The plaintiff gave evidence that his increasing levels of discomfort, headaches and what he described as "dysfunction" made it difficult for him to see patients. He said that as he had to sit for longer periods of time he became increasingly uncomfortable and inattentive and patients had complained about this. He also suffered from irritability and grumpiness which increased as the day progressed. As a result of this he had experienced a very high turn over of executive assistants since the accident. The plaintiff did not explain in evidence in which part of his body he felt the discomfort, but as he related it to sitting for longer periods of time, I assume that the discomfort was in his lower back. The plaintiff said that his discomfort was cyclical, but that the cycles of more difficult function had increased. 84 The plaintiff said that since the accident he had reduced his patient contact to first four days and then two days a week. He had also reduced the number of patients under his care in hospital so that he currently does not have more than one or two patients in hospital and they come to see him at his practice. 85 The plaintiff stated that prior to the accident he was in excellent health and had only seen a doctor on one occasion approximately a year before the accident when he had contracted pneumonia. He used to get an occasional migraine every two to five years, and this has not changed since the accident. 86 The plaintiff was asked in cross-examination about a written Executive Service Agreement between Infrapsych Pty Ltd and himself. This agreement is undated and appears to be only signed by the plaintiff on behalf of Infrapsych Pty Ltd and not in his personal capacity. It was apparent from the plaintiff's evidence that he initially thought that this document was the employment contract applicable to his current employment with Sentiens. He then realised that this was not the right agreement, as the salary referred to in the document was only $250,000
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per annum. After an adjournment of the plaintiff's evidence, another agreement was produced by the plaintiff's solicitors headed "Contract of Employment" between Sentiens Global Pty Ltd and the plaintiff. This agreement is unsigned and undated. However, the plaintiff gave evidence that this is the contract of employment that currently regulates his employment with Sentiens. 87 The Contract of Employment states that the plaintiff is employed as president (presumably this is the same position as what the plaintiff referred to as "executive chairman") and, on an interim basis during the start up period of the company, as Chief Executive Officer until no longer required by the Board. The Contract of Employment allows for a salary of $300,000 per annum, which includes superannuation. It does not say that the plaintiff has to generate a certain amount of patient fees. The general duties of the plaintiff set out in the Contract of Employment require, inter alia, that he devote the whole of his time, attention and skill during normal business hours, and at other times as reasonably necessary, to the duties of office, "except that the executive (the plaintiff) can continue to work in practice as a psychiatrist". 88 The Contract of Employment provides for 10 days' sick leave per year and that this is cumulative from year to year. It also provides that the company may terminate the agreement by not less than two months notice in writing if the plaintiff becomes incapacitated by illness or accident for an accumulated period of four months in any 12 month period or if the company is advised by an independent medical officer that the plaintiff's health has deteriorated to a degree that it is advisable for him to leave the company. 89 The plaintiff did not say in evidence that he expected to be unable to fulfil his role as president and Chief Executive Officer of Sentiens in the next five years as a result of his disabilities. As the Contract of Employment does not require the plaintiff to produce a certain amount in patient fees per year, it does not appear that the plaintiff is bound to sit through a fixed number of patient interviews per day. The plaintiff did not give evidence to what extent his neck pain, headaches, lower back discomfort and grumpiness interfere with his daily duties as Chief Executive Officer. The plaintiff's evidence was mainly geared to explaining how his disabilities have affected his ability to see and manage patients. 90 Whereas I accept that neck pain, headaches and lower back discomfort in sitting clearly present some restriction of his duties as
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Chief Executive Officer, the plaintiff appeared to be more concerned about delaying the potential cervical spine and lower back surgery than about whether he would be able to perform his duties as Chief Executive Officer in the near future. The plaintiff said that he wanted to make sure that Sentiens had become independent of his direction and management prior to engaging in the surgery. He expressed his concern that the surgery would probably require three months off work and a further period of three months of getting back to work. This would have a major damaging effect on his practice with patients and the Board would have some reservations about his role as Chief Executive Officer. He stated that he therefore intended to defer surgery as long as possible. 91 The plaintiff is clearly a disciplined person who has managed his disabilities as well as possible and is likely to continue to adjust his lifestyle so that he can manage the tasks required of him. The plaintiff gave evidence that he presently goes to the gym six times per week for 45 to 50 minutes before work. He also does Pilates exercises twice a week. He still wakes up every night because of pain or numbness and is up for an hour or two, but meditates or engages in self-help hypnosis in order to stop the burning or numbness and tingling. He said that he can get by with little sleep and that at this very high level of continued maintenance he can function quite well. 92 Since the accident the plaintiff has been earning more from his psychiatric practice than prior to the accident. The plaintiff tendered an Income and Expenses Summary prepared by the plaintiff's accountant, Mr Peter Constantinou. This summary sets out the gross patient fees earned by Dennis A Tannenbaum Pty Ltd in the fiscal years 1996 to 2004 together with the expenses incurred in conducting the practice as a psychiatrist. The gross fees earned in the 1996 fiscal year were $299,935, whereas the gross fee income for 2004 was $362,682. The plaintiff explained that the fees generated by his practice had increased from their level prior to the accident, as he had become orientated towards less acute patients and had increased the medico-legal component of his practice. This meant that he earned a higher income for working less hours. He also said that in the 2004 fiscal year he had tried to work as hard as he could to raise money to build up Sentiens. 93 The plaintiff was cross-examined on a Subscription Agreement which is undated, but indicates in the footer of the document that it was printed by solicitors on 13 January 2005. The agreement is between Sentiens, four existing shareholders in Sentiens, including Ledat Pty Ltd as trustee for the Tannenbaum Family Trust, and an investor. The
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agreement provides for shares in Sentiens to be issued to the investor over a period of 13 months in consideration for the total payment of $3.5m. The agreement indicates that prior to the issue of shares to the investor, Ledat Pty Ltd held 85.97 per cent of the total of issued shares in Sentiens and that after the issue of shares to the investor over the 13 month period, Ledat Pty Ltd would hold 60.96 per cent of the total shares issued. The plaintiff confirmed in evidence that this was the intended operation of the agreement. He said that currently the investor had paid about half of the total amount, but was behind in its payments. 94 The plaintiff's personal tax return for the 2004 tax year indicates a salary from Dennis A Tannenbaum Pty Ltd in the amount of $170,890 as well as a bonus of $9,350 from the same company. The tax return also shows income from trusts in the amount of $274,752. The plaintiff explained in evidence that the salary indicated in his tax return was the salary which had been allocated to him by Dennis A Tannenbaum Pty Ltd, but that this was not reflective of his earnings as a psychiatrist during the 2004 tax year. 95 The 2004 tax return for Dennis A Tannenbaum Pty Ltd shows gross income (fees received) in the amount of $362,682. It also lists a number of expenses, including salaries and wages in the amount of $170,890 (the plaintiff’s salary), the director’s bonus in the amount of $9,350, and employee's superannuation in the amount of $27,000. It further indicates that a management fee of $75,651 was paid by Dennis A Tannenbaum Pty Ltd. After deduction of these expenses and others the tax return shows an operating profit of $61,045. 96 Accordingly, the plaintiff's 2004 personal income tax return is not reflective of the plaintiff's earning capacity at that time. The salary of $170,890 together with the bonus of $9,350 does not reflect the plaintiff's full earning capacity as a psychiatrist. On the other hand the income from trusts in the amount of $274,752 is irrelevant to the determination of the plaintiff's earning capacity, as this income is derived by reason of the plaintiff holding shares in Perth Clinic and not by reason of his personal exertion. 97 Counsel for the plaintiff submitted that the Court could accept the following minimum level of earning capacity based on the 2004 tax return and the plaintiff's ability to practice as a psychiatrist. Mr Constantinou had given evidence that there was a mark-up of 15 per cent to 50 per cent on the management fees of $75,651 paid by Dennis A Tannenbaum Pty Ltd to the Tannenbaum Family Trust in 2004. Counsel for the plaintiff
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submitted that if the lowest figure of 15 per cent of the management fees, that is $11,348, was added to the salary, bonus and operating profit shown in the 2004 tax return, this indicated a net income from the plaintiff's psychiatric practice of about $252,633 ($11,348 + $170,890 + $9,350 + $61,045 = $252,633). 98 I accept that the 2004 tax return is evidence that the plaintiff's gross earning capacity from his psychiatric practice was at least $250,000 at that time. 99 Counsel for the plaintiff further relied on the Income and Expenses Summary prepared by Mr Constantinou as indicating gross income from patient fees for the fiscal year 2004 of $362,682 and total expenses of $81,749, leaving a net income of $280,933. However, Mr Constantinou could not explain in evidence why this summary did not show any expense for, inter alia, rent, salary and wages of administrative staff, security and subscriptions for the financial year 2004, as had been shown in some of the other fiscal years appearing on this summary. Mr Constantinou said that he would have to consult the underlying information in order to explain this. I am therefore reluctant to attach too much weight to the figure of net income indicated by this summary. 100 It is apparent from the Contract of Employment that the plaintiff currently also has an earning capacity of $300,000 which is partially based on his ability to practice as a psychiatrist and partially on his entrepreneurial and business ability.
Findings in respect of plaintiff's injuries and future medical expenses 101 I accept the plaintiff’s evidence in all material respects. I did not gain the impression that the plaintiff tried to exaggerate his symptoms or gave untruthful or unreliable evidence in relation to when particular symptoms had developed or their seriousness. I found the plaintiff to be a witness who gave a reasonably brief and forthright account of the particular symptoms or difficulties that he was experiencing. His account of his symptoms was often less elaborate and detailed than what he had apparently reported to his various medical practitioners. 102 Counsel for the first defendant submitted that the plaintiff's evidence had been disingenuous, if not deceitful, in that the plaintiff had tried to exaggerate his symptomatology and had put on a show of having to stand up in between giving evidence to emphasise the point of how uncomfortable he was in his lower back having to sit for lengthy periods. I do not attach any importance to the plaintiff having risen from his seat
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from time to time during his evidence, neither on the basis of this indicating severe symptomatology in the lower back nor on the basis of this indicating an attempt by the plaintiff to emphasise his problems. The plaintiff was offered the opportunity by the Court to stand up in between and made use of that opportunity. However, on the second day of the trial, the plaintiff was asked by counsel whether he would like a break, and he declined, saying that he had a "good day". In my view the plaintiff therefore did not try and create the impression that he was at all times unable to sit for any extended period of time. 103 Counsel for the first defendant also submitted that the plaintiff tended to exaggerate his position and tailor his evidence in order to suit his case. Counsel for the first defendant relied on the fact that the plaintiff told Mr Woodland on 24 March 2004 that he had increasing lumbar back pain which was becoming quite intrusive, whereas he told Dr Vaughan on 22 March 2004 that his lower back position was improved. However, Dr Vaughan had recorded in his report of 5 April 2004 that the plaintiff's lower back position "seems improved". Dr Vaughan said in evidence that what he had stated in his report were his conclusions from the history that he took from the plaintiff and the examination on that day. Dr Vaughan was not asked to consult his handwritten notes in respect of the consultation with the plaintiff on 22 March 2004. Accordingly, the statement that the plaintiff's back "seems improved" may not be exactly what the plaintiff told Dr Vaughan, but may have been Dr Vaughan's understanding. The statement may also have been related to the plaintiff's lower back condition on that particular day. I do not agree that this discrepancy between the reports of Dr Vaughan and Mr Woodland necessarily means that the plaintiff exaggerated his back condition to Mr Woodland, but told the truth to Dr Vaughan. In fact, both counsel for the first and second defendants submitted that the plaintiff, being a medical practitioner who had provided medico-legal reports in the past and given evidence in Court, knew of the importance that would be attached to medico-legal reports in Court and that it was therefore highly unlikely that the plaintiff would not have mentioned his lower back pain earlier if, indeed, he had experienced such back pain immediately after the accident. However, if the plaintiff was intent on presenting his best case for purposes of the medico-legal reports, it is unlikely that he would have told Dr Vaughan that his lower back had improved. 104 The plaintiff was also prepared to make concessions. He freely admitted that it was possible, if none of the medical reports for the first two years after the accident referred to lower back pain, that he had not mentioned this to any of his medical practitioners during that period. His
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explanation for not having reported the low back pain to his medical practitioners was that it was initially dwarfed by the overwhelming pain that he had felt in the neck and shoulders and that thereafter it was cyclical and not significant enough to cause him to do something about it until November 1999 when he saw Mr Woodland. Dr Silbert also made the point during his evidence that medical practitioners do not make good patients, as they tend to treat themselves and that having to consult with a colleague clouds their reporting to the colleague. The plaintiff's assertion that he did have a low degree of back pain within weeks after the accident was supported by Dr Vaughan discovering a notation in his handwritten notes that the plaintiff had told him in March 1997 that he was "uncomfortable in the back". The plaintiff had also strongly denied in cross-examination that he told Dr Greenham that he did not have pain in his back. When Dr Greenham was called, he confirmed that his notation in his report that the plaintiff did not have pain in the back had been a mistake. 105 Counsel for the first defendant and counsel for the second defendant also submitted that the plaintiff had not been forthright with the Court in that he had emphasised the symptoms which made it more difficult for him to carry on his practice as a psychiatrist, without telling the Court at the same time that half of his time was currently spent in execution of his duties as Chief Executive Officer of Sentiens. It was a bit surprising that the plaintiff did not provide any detail of what his duties as Chief Executive Officer entail and that his evidence focussed on his ability to continue working as a psychiatrist, whereas his employment had changed substantially since at least August 2004. However, the plaintiff did not try to hide his engagement as Chief Executive Officer. He gave evidence in examination-in-chief that he had been paid an annual salary of $300,000 by Sentiens since August 2004 and that this was in consideration for his services as Chief Executive Officer, executive chairman and in respect of patient income earned as a psychiatrist. 106 The plaintiff's employment contract with Sentiens and the Subscription Agreement were only discovered at the beginning of the trial. However, the plaintiff confirmed in re-examination that he had always provided any documents requested by his solicitors. I do not believe that the conclusion can necessarily be drawn from the fact that these documents were discovered late, that the plaintiff tried to conceal his role and position with regard to the shareholding and development of Sentiens.
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107 The plaintiff further did not try and bolster his claim by saying that he had definitely decided to proceed with a penile implant. He told the Court that he was undecided and that there was a 50 per cent chance that he might proceed with this.
108 I do not agree that the plaintiff was disingenuous or deceitful or tried to exaggerate his symptomatology. 109 I accept Dr Silbert's evidence in its entirety, particularly that the plaintiff suffered a significant cervical spinal cord injury as a result of the accident. The latter finding appears to have been accepted by all the medical practitioners who gave evidence in this regard. The difference of opinion was more directed towards the symptoms resulting from this injury and the likelihood of the plaintiff needing surgery to the cervical spine. Dr Silbert has been the plaintiff's treating specialist since shortly after the accident and has seen him on a number of occasions and has been able to follow in detail his changing symptomatology and cervical MRI scans. I find that it is more likely that the disc bulge at C3/4 level occurred at the time of the accident than that it was pre-existing. Dr Silbert said that the mechanism of the injury supported this conclusion. 110 In any event, Dr Carroll conceded that the forces exerted upon the plaintiff’s neck in the accident were sufficient to render symptomatic the previously asymptomatic degeneration in the cervical spine, including any disc protrusion. Accordingly, whether or not the disc bulge had been pre-existing, the forces of the accident at least caused the degenerative changes to become symptomatic and therefore made a material contribution to the plaintiff's current mechanical injury at C3/4 level. Dr Carroll also accepted that the hyper-extension of the plaintiff's cervical spine during the accident caused damage to the spinal cord. 111 I accept Dr Silbert's view that there is a chance of at least 50 per cent that the plaintiff will require a spinal cord decompression as well as fusion of the cervical spine in 5-15 years from the date of the trial. I accept this evidence because it is supported by Dr Vaughan, who was consulted by the plaintiff not only for medico-legal purposes, but initially as a treating surgeon as early as March 1997. Dr Vaughan is of the opinion that such surgery will be required in the future because he has already noted worsening symptomatology which indicates a worsening of the state of the spinal cord. 112 Mr Woodland was also of the opinion that there was a 50 per cent chance that the plaintiff would require cervical spinal surgery in
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5-15 years time. His opinion was based on his experience of seeing patients with spinal cord injuries who lost further function of their spinal cord as they became older. He also thought that the signal changes indicated on the MRI scans showed that there was some deterioration. This was also a concern expressed by Dr Silbert. 113 I prefer the evidence of Drs Silbert and Vaughan and Mr Woodland in this regard to the evidence given by Mr Kagi and Dr Carroll. Mr Kagi agreed that he was not an expert in spinal injuries and I prefer the opinion of Mr Woodland which is based on his experience in this regard. I also accept Dr Silbert's explanation that somatosensory evoked potentials only provide limited information about the pathways through a small part of the spinal cord and that they are not a reliable indicator of whether spinal surgery is required. There is clearly a possibility that the plaintiff may be able to avoid future surgery to the cervical spine, but I prefer the assessment by Drs Silbert and Vaughan and Mr Woodland of a 50 per cent chance to the assessment of Mr Kagi of a 10 per cent chance of the plaintiff requiring cervical spine surgery in the future. 114 I accept the plaintiff's evidence that he wishes to delay any surgery as long as possible so that he is able to assist Sentiens to become independent of his direction and management. Dr Silbert and Mr Woodland have both given an estimate that the cervical spine surgery is likely to be required in 5-10 years time from the date of the trial. |